Berg & Berg
[2024] FedCFamC1F 498
•15 July 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Berg & Berg [2024] FedCFamC1F 498
File number(s): SYC 5094 of 2024 Judgment of: ALTOBELLI J Date of judgment: 15 July 2024 Catchwords: FAMILY LAW – PARENTING – Where an oral application to proceed on an ex parte basis and to dispense with the s 60I requirements is made – Where the maternal grandmother seeks for the child to live with her – Where neither biological parent made an appearance – Where serious allegations of risk and neglect were raised – Where those risks are substantiated – Where orders were made in favour of the maternal grandmother. Legislation: Evidence Act 1995 (Cth) s 140(2)
Family Law Act 1975 (Cth) ss 4AB, 60B, 60CC, 60CC(2)(a), 61D(3), 61DA, 61DAA, 61DAB, 65DAA, 67ZDB
Family Law Amendment Act 2024 (Cth)
Cases cited: Cao & Cao (2018) FLC 93-880; [2018] FamCAFC 252
Eaby & Speelman (2015) FLC 93-65; [2015] FamCAFC 104
Fitzwater v Fitzwater (2019) 60 Fam LR 212; [2019] FamCAFC 251
Franklyn & Franklyn [2019] FamCAFC 256
Goode & Goode (2006) 36 FLC 93-286; [2006] FamCA 1346
Illes & Nelisson (2022) FLC 94-092; [2022] FedCFamC1A 97
Keane & Keane (2021) 62 Fam LR 190; [2021] FamCAFC 1
Kozma & Bielen [2022] FedCFamC2F 1003
M v M (1988) 166 CLR 69; [1998] HCA 68
Marvel & Marvel (No 2) (2010) 43 Fam LR 348; [2010] FamCAFC 101
Momcilovic v The Queen (2011) 245 CLR 1; [2011] HCA 34
Salah & Salah (2016) 56 Fam LR 299; [2016] FamCAFC 100
SS v AH [2010] FamCAFC 13
Division: Division 1 First Instance Number of paragraphs: 29 Date of hearing: 15 July 2024 Place: Sydney via videoconference Solicitor for the Applicant: Willis & Bowring Solicitors The First Respondent: Litigant in person (did not participate) The Second Respondent: Litigant in person (did not participate) Solicitor for the Third Respondent: Appearance excused ORDERS
SYC 5094 of 2024 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS BERG
Applicant
AND: MS B BERG
First Respondent
MR KOOLEN
Second Respondent
SECRETARY DEPARTMENT OF COMMUNITIES AND JUSTICE
Third Respondent
ORDER MADE BY:
ALTOBELLI J
DATE OF ORDER:
15 JULY 2024
THE COURT ORDERS THAT:
1.The matter is listed for mention on 27 August 2024 at 9am.
2.The Applicant has leave to make an oral application to proceed on an ex parte basis in relation to the First Respondent and the Second Respondent and to dispense with the requirements under s 60I of the Family Law Act 1975 (Cth) (“the Act”).
3.The application to proceed on an ex parte basis and to dispense with the requirements under s 60I of the Act is granted.
4.Leave is granted to the Applicant to issue in excess of five (5) subpoenas.
5.Leave is granted to the parties to apply to relist the proceedings on 72 hours’ notice in the event that further orders or directions are required, provided that in the event that such liberty is exercised the person seeking to relist the proceedings shall:
(a)Forthwith notify all other parties of the intention to make the request and the reason for same;
(b)Make the request for relisting in accordance with the Federal Circuit and Family Court of Australia protocol as to communication with chambers; and
(c)Contemporaneous with any notice of relisting serve upon all other parties a minute of orders to be sought together, in the case of the parties, with such evidence as is relied upon by the party in seeking such orders.
Parenting
6.Pending further order, the child X born 2023 (“the child”) live with the Applicant.
Independent Children’s Lawyer
7.Pursuant to s 68L(2) of the Act, the child X be independently represented AND IT IS REQUESTED that the Legal Aid Commission of New South Wales (“Legal Aid NSW”) arrange such independent representation and:
(a)forthwith upon appointment by Legal Aid NSW, the Independent Children’s Lawyer file a notice of address for service;
(b)within 48 hours of notification of such appointment the solicitors for the respective parents (or, if unrepresented, then the parent themselves) provide to the Independent Children’s Lawyer copies of all applications and affidavits upon which that party relies together with any existing orders and copies of any relevant reports;
(c)the Independent Children’s Lawyer fulfil the requirements set out in ‘Guidelines for the Independent Children’s Lawyer’ as published on the website of the Federal Circuit and Family Court of Australia, and in particular carry out the tasks set out in cl 5, 6.2, 6.3, 6.5 and 6.7; and
(d)the Independent Children’s Lawyer prepare a minute of the orders they will recommend be made as final orders.
8.Leave is granted to the Independent Children's Lawyer to inspect and copy:
(a)Material produced by the Department of Communities and Justice (“the DCJ”) on 12 July 2024 in response to the notification made under s 67ZBD; and
(b)Material produced by the New South Wales Police (“NSW Police”) on 12 July 2024 in response to the notification made under s 67ZBD.
Alcohol and drug testing
9.For a period of 12 months from the date of these orders the First Respondent and the Second Respondent shall submit to random supervised urine analysis within 24 hours of receiving a request from or on behalf of the Applicant, and to facilitate this order:
(a)Such urine analysis shall be conducted in accordance with the Australian/New Zealand Standard 4308:2008: Procedure for the collection, detection and quantitation of drugs of abuse in urine;
(b)The urine analysis may screen for alcohol ETG and/or drugs of abuse including amphetamine-type substances and metabolites, cannabis and metabolites, cocaine and metabolites, opioids and metabolites and any other drug specified in this order as required;
(c)The testing facility shall be at liberty to forward to the Applicant’s solicitor directly and the First Respondent and the Second Respondent shall provide a copy of the results of such testing to the Applicant’s solicitor within seven days of receipt of same;
(d)Such request may be made no more than twice each calendar month; and
(e)Such request may be sent to the First Respondent and the Second Respondent care of their email addresses or via text messages and shall be deemed received by the First Respondent and or the Second Respondent at the date and time it was sent by email or text. The First Respondent and the Second Respondent are to provide the Applicant’s solicitor with their current telephone number and email addresses and any change to those contact details within 24 hours.
10.The First Respondent and the Second Respondent, at the Applicant’s solicitor's request, make an appointment and attend for Hair Collection at an Australian Workplace Drug Testing Services ("AWDTS") Clinic or nominee for hair drug purposes. Collection is to be conducted by a qualified and certified collector. Chain-of-Custody procedure is to be applied to the sample. Testing is to be conducted at an approved laboratory, accredited to conduct hair drug testing to the recognised International Standard ISO/I EC 17025:2005 by the relevant national accreditation body for that laboratory. Either head or body hair may be collected for testing. To give effect to this order:
(a)The First Respondent and the Second Respondent are required to maintain their head hair at a length of not less than 4 centimetres, neither head hair nor body hair is to be cut, bleached or dyed between the date of this order and the time of collection of hair;
(b)Within 72 hours of receiving the request by the Applicant or her solicitor, the First Respondent and the Second Respondent are required to make an appointment with AWDTS for the purpose of providing a hair sample for hair drug and/or testing purposes;
(c)Each party or their legal representative is at liberty to provide AWDTS with a copy of these orders;
(d)The First Respondent and the Second Respondent are to attend an AWDTS Clinic or nominee and submit to the supervised collection of a hair sample from the First Respondent and the Second Respondent at the earliest available appointment time within seven days of receiving written notice to undertake hair collection for drug testing purposes from the Applicant or her legal representatives;
(e)Written notice to undertake hair collection for hair drug testing purposes may be sent to the First Respondent and the Second Respondent care of the email address and/or text and shall be deemed to have been received by the First Respondent and the Second Respondent at the date and time it is sent via email or text;
(f)The First Respondent and the Second Respondent are to provide the collector with photographic identification to be recorded before each hair collection and authority, with this order also hereby authorising AWDTS or nominee to provide the results of each test to both parties, the First Respondent and the Second Respondent and the Applicant and/or their legal representatives upon receipt of such test results;
(g)The hair drug and/or alcohol test may screen for alcohol ETG and/or drugs of abuse including amphetamine-type substances and metabolites, cannabis and metabolites, cocaine and metabolites, opioids and metabolites and any other drug specified in this order as required;
(h)AWDTS is required to utilise the testing services of an appropriate laboratory accredited to conduct hair drugs testing to the recognised International Standard ISO/IEC 17025:2005 by the relevant National Accreditation body; AWDTS selection is to be based on the type of test required, the specific drug to be tested, the laboratory’s compliance level with international Society of Hair Testing ("SOHT") guidelines, cost and time required for results to be made available;
(i)The cost of the hair alcohol and/or drug tests is to be met by the First Respondent and the Second Respondent;
(j)The First Respondent and the Second Respondent are required to submit to hair alcohol and/or drug testing not more frequently than four times a year from the commencement of these orders.
11.The First Respondent and the Second Respondent do all things necessary to authorise Laboratory collection worker to immediately provide to the Applicant or the Applicant’s solicitor, a copy of all reports setting out the details of the attendance by the First Respondent and the Second Respondent for analysis, any failure to attend by the First Respondent and the Second Respondent or to submit to any test and an indication of whether the test provided a positive or abnormal alcohol and/or drug screening result.
Service
12.Personal service of the Initiating Application and Application in a Proceeding both filed on 3 July 2024 on the First Respondent and Second Respondent is dispensed with.
13.By way of substituted service and within 48 hours of the date of this order, and until such time as the First Respondent and Second Respondent file a Notice of Address for Service, a sealed copy of the orders made today be served on the First Respondent and Second Respondent as follows:
14.At their last known email or postal address or by text message to their last known mobile phone numbers; and
15.To Ms C (the paternal grandmother) at her last known email or postal address or by text message to her last known mobile phone number.
Release of s 67ZBD material
16.Leave is granted to the Applicant’s legal representatives to inspect and copy the documents produced by the DCJ on 12 July 2024 in response to the s 67ZBD order made on 4 July 2024 in these proceedings.
17.Leave is granted to the Applicant’s legal representatives to inspect the documents produced by the NSW Police on 12 July 2024 in response to the s 67ZBD order made on 4 July 2024 in these proceedings.
18.Order 15 is stayed until 29 July 2024 at 4pm to allow the NSW Police the opportunity to oppose the production of the s 67ZBD material to the Applicant’s legal representatives.
19.If NSW Police objects the production of this material, this must be communicated to the Applicant’s legal representatives and my chambers before 29 July 2024 at 4pm, at which point the stay of Order 15 will continue.
20.The parties and their legal representatives are restrained from providing a copy of the documents or disclosing their contents to any other person without an order of the Court.
THE COURT NOTES THAT:
A.The Court is satisfied that the DCJ is aware of the present application.
B.Any information produced pursuant to s 67ZBD is confidential and cannot be disclosed to any other person without an order of this Court.
C.Penalties may apply pursuant to ss 112AD and 114Q of the Act if the information is disseminated other than as ordered in these proceedings.
D.An Independent Children’s Lawyer has been appointed for the following reasons:
(a)The child faces significant risk of neglect and abuse.
E.Legal Aid NSW has been given access to this file via the Commonwealth Courts Portal (“CCP”) and is granted leave to view copies of documents available on the CCP.
F.Subject to s 68LA(5B), pursuant to s 68LA(5D)(b) of the Act, the Independent Children’s Lawyer is required to meet with the child or provide them with an opportunity to express their views prior to final orders being made in this proceeding.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Berg & Berg has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
ALOTBELLI J:
The matter before me relates to a child, X, born 2023 (“X”). The matter comes before me in urgent circumstances. The applicant is Ms Berg (“the maternal grandmother”), who has, for all practical purposes, stepped in to care for X, in the absence of both Ms B Berg (“the mother”) and Mr Koolen (“the father”). The Court is satisfied that it is necessary to make orders today that are protective of X in the maternal grandmother’s care, and which enable her, for all practical and legal purposes, to be able to parent X. I have made orders dispensing with personal service on both the mother and the father, in circumstances where, from the evidence before the Court, it is not clear where they are living, or how they can be contacted.
I have made orders, the effect of which would be to enable substituted service in the event that an email address, a postal address, or a mobile phone number of either the mother or the father becomes available, and an order for substituted service on the paternal grandmother for the mother. In the circumstances, where the Court is satisfied that orders do need to be made in relation to X today, I am satisfied this is the best that the Court can do.
The Department of Communities and Justice (“the DCJ”), who clearly has an interest in X, is aware of the proceedings and has been technically joined as a party, and I am satisfied they have notice of today’s Court event. The extent to which the DCJ may remain involved or engaged in the proceedings in future is unknown. It is possible, now that orders have been made that provide for the safety of X in the maternal grandmother’s care, that their interest will change into one of simply monitoring the situation.
THE EVIDENCE BEFORE THE COURT
The evidence before the Court consists of the various documents that are referred to in the Outline of Case Document provided by Mr D, who is the solicitor for the maternal grandmother, including:
(1)Initiating Application filed 3 July 2024;
(2)Affidavit of Ms Berg filed 3 July 2024;
(3)Notice of child abuse, family violence or risk filed 3 July 2024; and
(4)Affidavit of Mr D filed 15 July 2024.
In addition, and pursuant to s 69ZBD of the Family Law Act 1975 (Cth) (“the Act”), documents have been provided by the DCJ, and New South Wales Police (“the police”). By way of summary of these quite voluminous documents, it is abundantly clear to the Court that the concerns that are expressed by the maternal grandmother are adequately corroborated by these documents.
It is regrettably the case that the mother and the father of X have led very difficult lives, where there have been issues of family violence, drug addiction, involvement with the police, and often consequential mental health issues. The impression that is created from looking at these documents, confirmed in the maternal grandmother’s affidavit, is that there would be serious concerns about the safety of X in the care of either the mother or the father. It is probable that at this point both the mother and the father experience itinerancy, and there is no doubt in the Court’s mind that, for the time being, X is more than safe in the maternal grandmother’s care.
A number of orders were sought today but the Court has made fewer orders than that sought on the basis that the matter will come back at a future date. The orders that have been made will provide for stability for X and for an Independent Children’s Lawyer to be appointed, on the basis that, even if this matter should proceed to an undefended final hearing it would be beneficial to the Court to have such a lawyer.
Also, orders have been made for urinalysis testing, and for hair testing, on the basis that if the mother and the father do emerge the question of drug testing becomes highly relevant. A number of consequential orders have been made as well. The more substantive orders sought by the maternal grandmother can be dealt with at a later time. Of course, the Court will entertain any application by the mother or the father to participate in these proceedings, and to seek orders for, for example, time and communication.
THE APPLICABLE LAW
The applicable law in these cases is well established.
The applicable law is found in Part VII of the Act. The Family Law Amendment Act 2024 (Cth) (“the Amendment Act”) came into effect on 6 May 2024 and made substantive amendments to the previous Act which apply to these proceedings. In determining parenting matters under Part VII of the Act the Court must still regard the best interests of the child as the paramount consideration: s 60CA.
The objects of Part VII are set out at s 60B:
60B Objects of Part
The objects of this Part are:
(a) to ensure that the best interests of children are met, including by ensuring their safety; and
(b) to give effect to the Convention on the Rights of the Child done at New York on 20 November 1989.
The presumption of equal shared parental responsibility as created by the previous s 61DA of the Act has been abolished. Instead, s 61D(3) of the Act provides the Court with the ability to deal with the allocation of responsibility for making decisions in relation a child as follows:
61D Parenting orders and parental responsibility
…
(3)A parenting order that deals with the allocation of responsibility for making decisions about major long-term issues in relation to the child (see subsection 64B(3)) may provide for joint or sole decision-making in relation to all or specified major long-term issues.
Section 61DAA of the Act provides the Court with an understanding of what joint decision-making about major long-term issues entails:
61DAA Effect of parenting order that provides for joint decision-making about major long-term issues
(1) If a parenting order provides for joint decision-making by persons in relation to all or specified major long-term issues in relation to a child, then, except to the extent the order otherwise specifies, the order is taken to require each of the persons:
(a) to consult each other person in relation to each such decision; and
(b) to make a genuine effort to come to a joint decision.
(2) To avoid doubt, this section does not require any other person to establish, before acting on a decision about the child communicated by one of those persons, that the decision has been made jointly.
Subject to any order to the contrary, s 61DAB clarifies that if a child is spending time with a person under a parenting order, the order is not taken to require that person to consult with a person who has parental responsibility about decisions that are made in relation to the child that are not major long-term issues.
Because s 60CA and s 60B refer to the best interests of the child, the Court must consider s 60CC which specifies how the Court determines what is in a child’s best interests:
60CC How a court determines what is in a child’s best interests
Determining child's best interests
(1) Subject to subsection (4), in determining what is in the child’s best interests, the court must:
(a) consider the matters set out in subsection (2); and
(b) if the child is an Aboriginal or Torres Strait Islander child—also consider the matters set out in subsection (3).
General considerations
(2) For the purposes of paragraph (1)(a), the court must consider the following matters:
(a) what arrangements would promote the safety (including safety from being subjected to, or exposed to, family violence, abuse, neglect, or other harm) of:
(i) the child; and
(ii) each person who has care of the child (whether or not a person has parental responsibility for the child);
(b) any views expressed by the child;
(c) the developmental, psychological, emotional and cultural needs of the child;
(d) the capacity of each person who has or is proposed to have parental responsibility for the child to provide for the child’s developmental, psychological, emotional and cultural needs;
(e) the benefit to the child of being able to have a relationship with the child’s parents, and other people who are significant to the child, where it is safe to do so;
(f) anything else that is relevant to the particular circumstances of the child.
(2A) In considering the matters set out in paragraph (2)(a), the court must include consideration of:
(a) any history of family violence, abuse or neglect involving the child or a person caring for the child (whether or not the person had parental responsibility for the child); and
(b) any family violence order that applies or has applied to the child or a member of the child’s family.
(Emphasis in original)
It should further be noted that due to the repeal of the former s 65DAA of the Act, there is no longer the statutory requirement for the Court to consider equal time or substantial and significant time. Cases that refer to this section will need to be carefully considered as to whether they still apply in limited ways, if at all.
The definition of family violence is found in s 4AB of the Act, reproduced below:
4AB Definition of family violence etc.
(1)For the purposes of this Act, family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family (the family member), or causes the family member to be fearful.
(2)Examples of behaviour that may constitute family violence include (but are not limited to):
(a) an assault; or
(b) a sexual assault or other sexually abusive behaviour; or
(c) stalking; or
(d) repeated derogatory taunts; or
(e) intentionally damaging or destroying property; or
(f) intentionally causing death or injury to an animal; or
(g)unreasonably denying the family member the financial autonomy that he or she would otherwise have had; or
(h)unreasonably withholding financial support needed to meet the reasonable living expenses of the family member, or his or her child, at a time when the family member is entirely or predominantly dependent on the person for financial support; or
(i)preventing the family member from making or keeping connections with his or her family, friends or culture; or
(j)unlawfully depriving the family member, or any member of the family member’s family, of his or her liberty.
(3)For the purposes of this Act, a child is exposed to family violence if the child sees or hears family violence or otherwise experiences the effects of family violence.
(4)Examples of situations that may constitute a child being exposed to family violence include (but are not limited to) the child:
(a)overhearing threats of death or personal injury by a member of the child’s family towards another member of the child’s family; or
(b)seeing or hearing an assault of a member of the child’s family by another member of the child’s family; or
(c)comforting or providing assistance to a member of the child’s family who has been assaulted by another member of the child’s family; or
(d)cleaning up a site after a member of the child’s family has intentionally damaged property of another member of the child’s family; or
(e)being present when police or ambulance officers attend an incident involving the assault of a member of the child’s family by another member of the child’s family.
The case law
The Full Court’s decision in Goode & Goode (2006) FLC 93-286 at [68] provides some guidance as to the procedure of interim parenting hearings:
…the procedure for making interim parenting orders will continue to be an abridged process where the scope of the enquiry is “significantly curtailed”. Where the Court cannot make findings of fact it should not be drawn into issues of fact or matters relating to the merits of the substantive case where findings are not possible. The Court also looks to the less contentious matters, such as the agreed facts and issues not in dispute and would have regard to the care arrangements prior to separation, the current circumstances of the parties and their children, and the parties’ respective proposals for the future.
An interim hearing proceeds on evidence that is yet to be tested. There is no cross-examination to establish the veracity of the evidence before the Court. Where facts are in dispute the Court cannot make conclusive findings about those matters. As the Full Court observed in Franklyn & Franklyn [2019] FamCAFC 256 at [73]:
In interlocutory hearings, to the extent it is possible, judges are enjoined to make decisions about interim orders based on agreed facts, less contentious evidence, and inferences which fairly arise (citation omitted), but decisions must still be made despite contentious evidence. Judges are obliged to act on the strength of the evidence presented and, if it is relatively weak, are entitled to treat it so.
Nonetheless, any such findings made at an interim hearing “should be couched with great circumspection, no matter how firmly a judge’s intuition may suggest that the finding will be borne out after a full testing of the evidence” (SS v AH [2010] FamCAFC 13 at [88]).
It is important to recognise that interim orders are only a waypoint on the road to a final solution for the family unit. As explained by the Full Court in Marvel & Marvel (No 2) (2010) 43 Fam LR 348 at [120] (“Marvel”):
As has been frequently emphasised interim parenting proceedings, and orders made as a consequence, are a necessary but temporary measure until all the evidence can be tested, evaluated and weighed at a final hearing by the making of final parenting orders. Decisions judicial officers have to make in interim proceedings are difficult and, often for very good reason, a conservative approach, or one which is likely to avoid harm to a child is adopted. This is often to the understandable distress of a party who may not achieve the outcome he or she desires, or thinks to be in the best interests of their child or children.
The recent amendments to the Act
Pursuant to subsection 60CC(2)(a) of the Act the Court must have regard to what arrangement would promote the “safety” of the child and each person who has care of the child (whether or not a person has parental responsibility for the child).
“Safety” is not defined in the Act. It is often said that words in a statutory context are to be given their ordinary or natural meaning (Momcilovic v The Queen (2011) 245 CLR 1 at [56]). This Court is drawn to a view that “safety” is a state in which hazards or conditions leading to physical, psychological, or material harm are controlled in order to preserve the health and wellbeing of an individual. It is not the complete elimination of risk of harm, but rather making such order as affords the child the most optimal protection from harm.
In contemplating the child’s safety, or by natural implication any risk of an unacceptable nature to that safety posed by a proposal, the Court is mandated to consider any history of family violence, abuse or neglect involving the child or a person caring for the child, together with any family violence order previously or currently in place.
The assessment of risk, or the existence of indicators of potential harm, is an evidence-based conclusion referable to the statutory framework and is not discretionary (Illes & Nelisson (2022) FLC 94-092 at [84]). The finding about whether an unacceptable risk to safety exists, based on known facts and circumstances, is either open on the evidence or it is not (Evidence Act 1995 (Cth) s 140(2)).
The central task of the Court is to assess the risk of harm posed to the child and to determine what orders should be made to ameliorate that risk. Intrinsic to that process is the need to assess the strength of the evidence from which it is said the risk should be inferred (Cao & Cao (2018) FLC 93-880 at [46] (“Cao”)). Inconsistencies and anomalies can reduce the weight given to evidence (Cao at [56]).
Serious allegations cannot be ignored at interlocutory events simply because they have been put in issue and are lacking in corroboration (Marvel at [122]–[123]; Salah & Salah (2016) 56 Fam LR 299 at [33]–[45]; Eaby & Speelman (2015) FLC 93-654 at [18]–[19]).
The Court’s function is discharged by examining the evidence carefully to determine whether it establishes an unacceptable risk of harm (M v M (1988) 166 CLR 69at [25]). Some risk arising to a child’s safety may be capable of amelioration by further order of the Court (Keane & Keane [2021] 62 Fam LR 190 at [84]; Kozma & Bielen [2022] FedCFamC2F 1003). A risk of some occurrence may be tolerable, but an unacceptably high risk of the same occurrence is not (Fitzwater v Fitzwater [2019] FamCAFC 251 at [148]– [149]).
CONCLUSION
The Act requires me to focus in this case on the safety of a child and this is a clear case where X is safest in the maternal grandmother’s care, certainly in the short term, and depending on the evidence and participation of the parents in the proceedings, perhaps even on a longer-term basis. In the circumstances, I am more than satisfied that the orders that I’ve made, and the orders sought by the maternal grandmother, are in the best interest of X. I intend to bring the matter back before me in about six weeks, subject to leave to re-list on 72 hours’ notice.
I certify that the preceding twenty nine (29) numbered paragraph are a true copy of the Ex Tempore Reasons for Judgment of the Honourable Justice Altobelli. Associate:
Dated: 24 July 2024
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